View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of San Francisco Nasty Women and the Rule of Law By ALICE WOOLLEY and ELYSA DARLING* “Such a nasty woman.”1 “There’s just something about her that feels castrating, overbear- ing, and scary.”2 “She undoubtedly suffered in the trial . but she was not likable.”3 “Marie Henein is a successful female lawyer at the top of her pro- fession. Total bitch.”4 “Not a feminist.”5 Introduction NO ONE ENTERS THE LEGAL PROFESSION expecting social pop- ularity—or, at least, no one should.6 But recent events create the im- * Alice Woolley is Professor of Law at the Faculty of Law, University of Calgary, and President of the International Association of Legal Ethics. Elysa Darling graduated from the University of Calgary in 2016, and currently practices law in Calgary. The authors would like to thank Amy Salyzyn and Alex Darling for their helpful comments and feedback, and Joshua Davis and the University of San Francisco School of Law for including this paper in the 2017 Workshop on Jurisprudence and Legal Ethics. 1. Daniella Diaz, Trump calls Clinton ‘a nasty woman’, CNN (Oct. 20, 2016), http:// www.cnn.com/2016/10/19/politics/donald-trump-hillary-clinton-nasty-woman [https:// perma.cc/U94K-H8L3]. 2. Yvonne A. Tamayo, Rhymes with Rich: Power, Law and the Bitch, 21 ST. THOMAS L. REV. 281, 286 (2009) (quoting Tucker Carlson on Hillary Clinton during her 2007-2008 run for the Democratic presidential nomination). 3. Tim Cornwell, When Marcia Clark failed to persuade a jury that OJ Simpson was guilty of murder, she fell from grace with a bump – less a legal eagle than a dead parrot. Today’s the day she gets her own back, THE INDEPENDENT (May 8, 1997), http://www.independent.co.uk/life- style/when-marcia-clark-failed-to-persuade-a-jury-that-oj-simpson- [https://perma.cc/ 75UG-X95Y]. 4. Steve Simon (@the_stevesimon), TWITTER (Mar. 30, 2016, 7:12 AM), https://twit- ter.com/the_stevesimon/status/715179945786544128 [https://perma.cc/ZKA6-QZ63] (discussing how Marie Henein successfully defended Canadian radio personality Jian Ghomeshi from accusations of sexual assault). 5. Meghan Murphy, Marie Henein: Not a feminist, not a surprise, FEMINIST CURRENT (Apr. 4, 2016), http://www.feministcurrent.com/2016/04/04/marie-henein-not-a-femi- nist-not-a-surprise/ [https://perma.cc/Q9B4-3WNL]. 6. See e.g., Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 75 CAL. L. REV. 379, 380 (1987); Carl T. Bogus, The Death of an Honorable Profession, 71 IND. 507 508 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 51 pression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed, and adversarialism that typify anti-lawyer criticisms.7 For women lawyers, attacks and criticisms are not only role-related (arising from her occupation in a professional role) but also personal, specific, and gendered. Lawyers in general are labeled as morally troubling; women lawyers risk being specifically and personally identified as morally transgressive, even when performing acts expected of a person in their role.8 Women who take on law firm leadership, advocate in notorious trials, lead teams in complex corpo- rate transactions, demonstrate political ambitions or political leader- ship—that is, women who do things that lawyers might normally be expected to do—risk gendered and hostile forms of criticism. They risk being labeled unlikable, unattractive, unfeminine, unpleasant, and immoral—basically, a bitch. Such attacks are not certain to occur. They may be more likely for some women than for others and the form and tone that attacks take almost certainly vary with context. But a woman who chooses to enter the legal profession does not just risk generic unpopularity—she also risks being labeled a “nasty woman.”9 That is the premise of this paper. We do not prove that women lawyers risk being attacked in this way, although we note some exam- ples of those who have. We also respond to some objections to this premise and discuss the extent to which gender equality has eluded the legal profession to this day, even in comparison to other profes- sions. Primarily, we focus on why gendered and personal attacks on women might occur. Why did the criticisms of Marcia Clark’s han- dling of the OJ Simpson Trial have an unpleasant sexist undercur- L.J. 911, 911–12 (1996); Thomas W. Overton, Lawyers, Light Bulbs, and Dead Snakes: The Lawyer Joke as Societal Text, 42 UCLA L. REV. 1069, 1073–74 (1995); Ronald D. Rotunda, The Legal Profession and the Public Image of Lawyers, 23 J. LEGAL PROF. 51, 53 (1999); W. Bradley Wendel, How I Learned to Stop Worrying and Love Lawyer-Bashing: Some Post-Conference Reflec- tions, 54 S. C. L. REV. 1027, 1033–36 (2003). 7. Marc Galanter, Predators and Parasites: Lawyer-Bashing and Civil Justice, 28 GA. L. REV. 633, 634–37 (1994) (identifying the four “clusters” of complaints about lawyers). 8. See Caryn Ganz & Patrick Healy, Madonna and Hillary: “Witch” and “Nasty Woman” as Sisters in Arms, N.Y. TIMES (Dec. 11, 2016), http://www.nytimes.com/2016/12/11/arts / music/madonna-hillary-clinton-renegades.html (discussing that the criticisms both women have received are troubling, and the connection we make between them is that Madonna suffers misogynist attacks because she is a woman who embraces violations of conventional moral standards; Hillary Clinton suffers misogynist attacks because she is a woman and her role—as lawyer and as politician—requires her to occupy morally problematic space) [https://perma.cc/7XW7-WM2A]. 9. Diaz, supra note 1. Issue 3] NASTY WOMEN 509 rent?10 Why do commentators discussing the highly successful Canadian defense lawyer Marie Henein invariably focus on her high heels, clothes, and attractive appearance?11 Why was Hillary Clinton attacked in vicious and misogynist ways from the very beginning of her time in the public eye and throughout her final, unsuccessful run for the Presidency?12 Our thesis is that attacks on women lawyers arise from the inter- section between the normative structure of the lawyer’s role and sexist stereotypes. The lawyer’s function in achieving the social settlement of law, including maintaining the rule of law, requires lawyers to occupy positions of moral ambiguity and power. Lawyers have the privilege and responsibility to pursue the interests of their clients within the bounds of legality, even where doing so inflicts harm or violates val- ued norms of ordinary morality. That role makes all lawyers unpopu- lar.13 However, when this is combined with prescriptive gender stereotypes about appropriate conduct for women,14 it makes women lawyers seem not merely morally dubious, but personally dangerous.15 10. See generally, Rebecca Traister, Marcia Clark is Redeemed, N. Y. MAG. (Feb. 17, 2016), http://nymag.com/thecut/2016/02/marcia-clark-redeemed-c-v-r.html (discussing the sex- ist coverage of Marcia Clark) [https://perma.cc/5GCT-RC4V]; Sara Boboltz, Marcia Clark Couldn’t Escape Brutal Personal Media Attacks During OJ Simpson Trial, HUFFINGTON POST (Mar. 9, 2016), http://www.huffingtonpost.com/entry/marcia-clark-nude-photos-oj-simp son-trial_us_56e04ebee4b0860f99d75b78 [https://perma.cc/WUD6-5F83]. 11. Anne Kingston, The Ghomeshi trial’s one taboo: Marie Henein’s shoes, MACLEANS (Jan. 9, 2016), http://www.macleans.ca/culture/the-ghomeshi-trials-one-taboo-marie-heneins- shoes/ [https://perma.cc/8ESH-MXAH]; Marci McDonald, The Fixer, TORONTO LIFE (Oct. 20, 2015), http://torontolife.com/city/crime/marie-henein-jian-ghomeshi-lawyer/ [https://perma.cc/Z5D7-AF7C]. 12. Tamayo, supra note 2 (discussing examples of earlier sexist discussions of Clin- ton); Deborah L. Rhode, Diversity and Gender Equity in Legal Practice, 82 U. CIN. L. REV. 871, 880–81 (2014) [hereinafter Rhode, Diversity]. See Rebecca Solnit, From Lying to Leering, 39 LONDON REV OF BOOKS 3, http://www.lrb.co.uk/v39/n02/rebecca-solnit/from-lying-to- leering [https://perma.cc/5AF5-Z7B7]. We discuss below the objection that attacks on Clinton are not a relevant example for a paper about women lawyers since arising from her power and political role, not from the fact that she is a lawyer. In short, politics and law are closely analogous roles, and attacks on Clinton have at times focused on her status and work as a lawyer, including in the last presidential campaign. 13. Wendel, supra note 6, at 1036. 14. Laurie A. Rudman & Julie E. Phelan, Backlash effects for disconfirming gender stereo- types in organizations, 28 RES. IN ORGAN. BEHAVIOR 61, 63 (2008) (discussing how descriptive gender stereotypes are stereotypes about how women and men are—their attributes and abilities; and how prescriptive gender stereotypes are stereotypes about how women and men ought to be. Research may suggest that even as descriptive stereotypes evolve, pre- scriptive stereotypes remain robust today: “the same traits deemed most desirable for wo- men in the 1970s continue to be viewed as most desirable for women today”). 15. See generally, Madeline E. Heilman, Gender Stereotypes and workplace bias, 32 RES. IN ORGAN. BEHAVIOR 113, 113–35 (2012) (discussing prescriptive gendered stereotypes about 510 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 51 The perceived danger presented by a woman lawyer connects to an individual woman where she, specifically, presents the danger, rather than simply being part of a group or category of dangerous people, and she invites the moral outrage.16 The dissatisfaction and criticism arising from a woman lawyer in her role will not be directed at law- yers, or even at women lawyers; it will be directed just at this one par- ticular “nasty woman.” This paper sets out this thesis, and considers its ramifications for women, the legal profession, and the rule of law that the lawyer’s role is designed in significant part to achieve.